Issue 6 | Volume 95 | Law Review at Washington University in St. Louis

Article

Public Unions Under First Amendment Fire

Tabatha Abu El-Haj

Unions today are under First Amendment fire, with the compelled speech doctrine as the weapon of choice. Conservative interests are waging a legal war against agreements that include “fair-share service fees,” under which public-sector unions are permitted to charge nonunion members to pay their share of the costs of collective bargaining. Espousing libertarian theories of free speech doctrine, an array of conservative-funded litigants maintain that fair-share service fees, at least…

Symposium

Candides and Cassandras: Technology and Free Speech on the Roberts Court

Ashutosh Bhagwat

John Roberts assumed his position as Chief Justice of the United States just prior to the commencement of the October 2005 Term of the Supreme Court. That was seven years after Google was incorporated, one year before Facebook became available to the general public, and two years before Apple released the first iPhone. The twelve years of the Roberts Court have thus been a period of constant and radical technological…

Symposium

Four Principles for Digital Expression (You Won’t Believe #3!)

Danielle Keats Citron and Neil M. Richards

At the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike down a federal law – the Communications Decency Act – that restricted digital expression to forms that were merely “decent.” Far more than the printing press, the Court explained, the…

Symposium

A Half-Hearted Defense of the Categorical Approach

Chad Flanders

One of Professor Magarian’s more impressive achievements in Managed Speech is paying the Roberts Court the compliment of providing a theory that runs through its various First Amendment cases. The book shows us surprising and hidden connections between disparate opinions by the Justices of the Court, and between different areas of First Amendment law. Importantly, the “managed speech” theory goes beyond just name-calling: “managed speech” is a coherent and even…

Symposium

Public Employee Speech and Magarian’s Dynamic Diversity

Heidi Kitrosser

The Supreme Court under Chief Justice John Roberts has been praised in many quarters as a committed ally of free speech. Certainly, a number of Roberts Court decisions do protect speech. Putting aside the Court’s controversial campaign finance decisions—the merits of which divide even free speech advocates—the Roberts Court’s speech-protective decisions include several cases in which it refused to create new categories of “unprotected” speech, a decision striking a buffer…

Symposium

Managing Dissent

Timothy Zick

In his insightful new book, Managed Speech: The Roberts Court’s First Amendment (2017), Professor Greg Magarian criticizes the Roberts Court for adopting a “managed speech” approach in its First Amendment cases. According to Professor Magarian, that approach gives too much power to private and governmental actors to manage public discourse, constrain dissident speakers, and instill social and political stability. This Article argues that at least insofar as it relates to…

Symposium

The View from My Window

Gregory P. Magarian

The experience of writing a book and then reading what some very smart and knowledgeable people have to say about the subject matter is humbling and a little dizzying. In Managed Speech: The Roberts Court’s First Amendment, I try to make some sense of the present Supreme Court’s decisions over the past decade about the First Amendment’s protections for free expression. The book argues that those decisions, taken as a…

Note

Legal Defiance: Government-Sanctioned Graffiti Walls and the First Amendment

Kelly Oeltjenbruns

The caricature face of Maine Governor Paul LePage, wearing a Ku Klux Klan hood and surrounded by the words homophobe, moron, and racist greeted every passerby of the Portland Water District (PWD) in Portland, Maine on September 6, 2016. The image sparked a controversial exchange between local government entities, a rarity since the City of Portland and PWD agreed to provide the hundred-foot wall as a public graffiti site in…